170 Mo. 269 | Mo. | 1902
Ejectment to recover an undivided one-sixth interest in ninety-three acres in Pettis county. The plaintiff recovered judgment below for an undivided one-eighth interest, with damages for detention, and the defendant appealed. The petition is in the usual form. The answer is a general denial, coupled with special pleas: first, that the plaintiff is not a proper party and has no right to bring this action; second, 'a plea of the statute of limitations; third, title, by mesne conveyances, from the plaintiff and her husband.
The facts shown, briefly stated, are these: David Folkerth is the common source of title. He died in 1866, seized and possessed of the land, intestate and without issue, leaving as his heirs, his father, Christopher; his mother, Mary; his brother, Harvey; and his sister, Louisa, the plaintiff. The father went into possession of the land immediately thereafter. On November 23, 1867, the mother died intestate. On April 18, 1868, the plaintiff and her husband conveyed all her interest in the land to her brother Harvey, for a consideration of five hundred dollars, by a quitclaim deed, properly executed and recorded. On October 28, 1868, the father died intestate, and the brother Harvey went into possession of the land. On March 6, 1873, the plaintiff and her husband executed and delivered to the brother Harvey, a quitclaim deed, which under certain whereases recited the execution by them to the brother of the prior deed of April 18, 1868; the fact that David Folkerth, the common source of title, was,
The brother, Harvey, was then in possession of the land, claiming to own the whole of it. Thereafter Harvey sold the land to J. C. Dillon, and he afterwards sold it to the defendant who has held the possession of it ever since, claiming it adversely to all the world, has improved it very materially, paid taxes upon it, built houses and barns and stables on it.
The plaintiff Louisa was married' to her present husband, Gilbert Vanata, in 1849, had a child born alive in 1850, and has other children, and her husband is still living. SHe has lived in the neighborhood of the land in question all these years, and after she made the two quitclaim deeds referred to, she never asserted any claim to any part of the land until five or six years before this suit was brought. She now sues alone, and claims to own an undivided one-eighth interest in the land. She bases her claim on this: the land belonged to her brother David'. When he died in 1866, intestate and without issue, he left as his heirs his father, his
In 1868 Louisa quitclaimed all her interest in the land to her brother Harvey. This covered the one-fourth she inherited from David and also the one-eighth she got from her mother, which she had inherited from David.
In October, 1868, the father died intestate, and the one-fourth he had inherited from David, descended in equal parts to Harvey and Louisa, and it is this one-eighth interest the plaintiff now claims. The plaintiff also says that the second quitclaim deed which she made in 1873 was only intended to correct the first quitclaim deed made in 1868, and was not intended to and did not have the effect of passing the undivided one-eighth interest that she inherited from her father between the dates of the two deeds. The plaintiff further contends that having been a married woman all this time the statute of limitations does not,bar her right to recover, and that under the Act of 1889 (now sec. 4340, R. S. 1899) she was for the first time given a right to bring an action in her own name for the possession of her real estate, during the life of the husband, and that this action was brought within ten years after her cause of action accrued by virtue of that act.
On the other hand, the defendant claims that if the plaintiff owns the one-eighth interest so inherited from her father, she can not maintain this action, for the reason that the cause of action having accrued prior to the Married Woman’s Act, her husband had a vested right to the possession of his wife’s lands during cov-erture and her life (he also living) which could not be taken away by that act, and that the wife’s right of action will not accrue as long as her husband lives, and that as against the husband’s claim the defendant has acquired a right by limitation which will entitle the de
I.
The defendant’s first contention that the plaintiff can not maintain this action is well taken and is decisive of this case, and, therefore, a decision of the other propositions is unnecessary.
The interest the plaintiff claims was devolved upon her in 1868 immediately upon the death of her father. At that time she was a married woman. Thereupon the husband became instantly vested with the exclusive right to the possession of the wife’s interest, and the right to sue for it and enjoy it as long as his wife lived and he continued to be her husband. The wife had ho right to sue for the possession, and for this reason her cause of action did not accrue and the statute of limitations did not begin to run against her until her husband’s death. The statute of limitations, however, would run against the right of possession of the husband. This right of the 'husband arose from the marital relation, and was not in any sense a right of curtesy, initiate or otherwise, and did not depend upon the birth of a child. [Hall v. French, 165 Mo. l. c. 438.]
This being a vested right of the husband it was not and could not be taken away by the Married Woman’s Act. [Leete v. Bank, 115 Mo. 184; Ibid. 141 Mo. 574; Flesh v. Lindsay, 115 Mo. 17; Arnold v. Willis, 128 Mo. l. c. 149; Bains v. Bullock, 129 Mo. l. c. 120; Smith v. White, 165 Mo. l. c. 596.]
That statute is prospective, and as to all property to which the wife acquired title after the passage of the act, the husband had no such right to the possession,
Inasmuch as this disposes of this case it is unnecessary to consider any of the other questions raised.
The judgment of the circuit court is reversed.